united states district court northern district of …partha ghosh, m.d., willard elyea, joseph...

CH1 11652691.1

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DON LIPPERT,

Plaintiff,

v.

PARTHA GHOSH, M.D., WILLARDELYEA, JOSEPH SSENFUMA, TAMMYGARCIA, TERRY McCANN, MELODYFORD, ROGER WALKER AND QUENTINTANNER,

Defendants.

))))))))))))

No. 10-CV-4603

Judge Ruben CastilloMagistrate Judge Morton Denlow

FIRST AMENDED COMPLAINT

Don Lippert (“Lippert”), by and through his attorneys, and for his First Amended

Complaint against Defendants Partha Ghosh (“Ghosh”), Willard Elyea (“Elyea”), Joseph

Ssenfuma (“Ssenfuma”), Tammy Garcia (“Garcia”), Terry McCann (“McCann”), Melody Ford

(“Ford”), Roger Walker (“Walker”) and Quentin Tanner (“Tanner”), alleges and states as

follows:

NATURE OF THE ACTION

1. This is an action by Lippert, an inmate in the custody of the Stateville

Correctional Center (“Stateville”), whose constitutional rights have been violated by the

Defendants’ continued and consistent deliberate indifference toward his acute medical and

dietary needs during his incarceration.

2. Lippert brings this action pursuant to Title 42 U.S.C. § 1983 to redress violations

of the Eighth Amendment, applicable to the states by incorporation into the Due Process and

Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

Case: 1:10-cv-04603 Document #: 10 Filed: 11/10/10 of 14 PageID #:31

2CH1 11652691.1

3. Lippert seeks actual, consequential, compensatory and punitive damages, as well

as attorneys’ fees and court costs from Defendants.

JURISDICTION AND VENUE

4. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. § 1331 and

28 U.S.C. § 1343 because the matters in controversy arise under the Constitution and laws of the

United States.

5. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part

of the events that give rise to Lippert’s claims took place within the Northern District of Illinois.

6. This Court has authority pursuant to 42 U.S.C. § 1983 to award appropriate

actual, consequential, compensatory, and punitive damages, and has authority under 42 U.S.C.

§ 1988 to award attorney fees and costs to successful civil rights plaintiffs.

7. Lippert has exhausted all administrative remedies available to him prior to

bringing this 42 U.S.C. § 1983 civil rights lawsuit within the meaning of the Prison Litigation

Reform Act, 42 U.S.C. § 1997(e)(a).

PARTIES

8. Lippert is an inmate of Stateville (ID # B-74054). He was incarcerated on or

around February 29, 1996, and remains in custody to this day.

9. Defendant Ghosh is, and at all times relevant to this lawsuit was, the medical

director at Stateville and was and had management and administrative responsibilities at

Stateville, including Plaintiff’s medical treatment and care at Stateville. Lippert sues Ghosh in

his official and individual capacity.

10. Defendant Elyea is, and at all times relevant to this lawsuit was, an employee of

the Illinois Department of Corrections and acted as Agency Medical Director, and is and had

management and administrative responsibilities at the Illinois Department of Corrections,


3CH1 11652691.1

including Plaintiff’s medical treatment and care at Stateville. Lippert sues Elyea in his official

capacity.

11. Defendant Ssenfuma is, and at all times relevant to this lawsuit was, an employee

of Stateville and acted as a Registered Nurse, and is and had management and administrative

responsibilities at Stateville, including inmate grievances and medical care. Lippert sues

Ssenfuma in his official and individual capacities.

12. Defendant Garcia is, and at all times relevant to this lawsuit was, a Grievance

Counselor, and had management and administrative responsibilities at Stateville, including

inmate grievances. Lippert sues Garcia in her official capacity.

13. Defendant McCann is, and at all times relevant to this lawsuit was, the warden of

Stateville, as well as, for purposes of this Complaint, the Chief Administrative Officer, and had

management and administrative responsibilities at Stateville, including inmate grievances.

Lippert sues McCann in his official capacity.

14. Defendant Ford is, at all times relevant to this lawsuit was, the Chair of the

Administrative Review Board and had management and administrative responsibilities at

Stateville, including inmate grievances. Lippert sues Ford in her official capacity.

15. Defendant Walker is, at all times relevant to this lawsuit was, the Director of the

Illinois Department of Corrections and is the Illinois Department of Corrections and acted as

Agency Medical Director, and had management and administrative responsibilities at the Illinois

Department of Corrections, including Plaintiff’s medical treatment and care at Stateville..

Lippert sues Walker in his official capacity.


4CH1 11652691.1

16. Defendant Tanner is, at all times relevant to this lawsuit was, the Food Supervisor

at Stateville and had management and administrative responsibilities at Stateville, including

inmate dietary needs. Lippert sues Tanner in his official capacity.

FACTUAL ALLEGATIONS – LIPPERT’S MEDICAL PROBLEMS

Lippert Suffers From Type I Diabetes Requiring Acute Medical Treatment and Care

17. Lippert suffers from Type I Diabetes, which was diagnosed prior to his

incarceration and for which Lippert received treatment prior to his incarceration.

18. On or about September 16, 1999, Lippert was placed into the Diabetes Data Base

at Stateville.

19. The medical progress notes from this date recognize that Lippert suffers from

IDDM type I diabetes, which was first diagnosed in 1990 and which requires a diet of 2800

calories pursuant to the American Diabetes Association. The notes further recognize the need

for such a diet, and that Lippert agrees to comply with this diet. See Medical Progress Notes

dated September 16, 1999 (Exhibit A).

20. On May 7, 2001, the current Medical Director at Stateville, Dr. Joseph K. Smith,

emphasized that Type I diabetes like that suffered by Lippert requires “management of LDL and

total cholesterol values within a strict range,” noting further that “diet” plays a “pivotal” role in

the management of Type I Diabetes. See Memorandum fro Medical Director Dr. Joseph K.

Smith, dated May 7, 2001 (Exhibit B).

21. Despite recognition of such a need to manage Lippert’s diabetes by rationing

foods within a strict range, Lippert has repeatedly received inadequate dietary care throughout

his incarceration at Stateville. In turn, Lippert has repeatedly filed grievances. These grievances

have previously been denied based upon a finding that the stated policy had been followed, as


5CH1 11652691.1

“strict adherence is carried out relative to his special medically prescribed diet.” See October 14,

2004 Grievance Officer’s Report (Exhibit C).

22. Despite his necessary “medically prescribed diet”, however, strict adherence has

not been carried out.

23. Due to Lippert’s grave concerns about the indifference to his medical needs, on

July 2, 2004, Lippert contacted the Director of IDOC, Defendant Walker, notifying him as to the

ineffective medical treatment that Lippert was receiving, including an improper and non-

compliant diet, and requesting a medical transfer to Dixon Correctional Center so that Lippert

could received proper medical care.

24. On February 18, 2005, Defendant Ghosh drafted a letter memorandum, which

appears to be addressed to certain inmates with diabetes, including Lippert. The memorandum

indicates that official policy at Stateville for diabetes will change from a calorie-controlled diet

to a “LCS” diet, or “Low Concentrated Sweets” diet, which restricts concentrated sweets such as

“sugar, candy, honey, jelly, jam, syrup, pies, cakes, puddings and sweetened soft drinks, etc.”

See February 18, 2005 Memorandum from P. Ghosh re: Diabetic Diet (Exhibit E).

25. This memorandum also was carbon copied to several other individuals, including

Defendant Tanner, the food supervisor at Stateville, placing him on notice of the need to

supervise diabetic diets to conform to the diabetic diet policy at Stateville.

26. After receiving the letter from Ghosh, Lippert repeatedly complained to Ghosh

and other medical officials that he was not being provided a LCS diet, and that he continued to

received the standard prison diet, including sweets, desserts and other items expressly prohibited

in Ghosh’s memorandum of February 18, 2005.


6CH1 11652691.1

27. On at least one occasion, Ghosh responded that Lippert “shouldn’t be getting

these things with [his] meals, but that [Lippert] know[s] not to eat them so what is [his]

concern.”

28. To this date, despite the clear medical need, and acknowledgment of such a need,

Lippert continues to receive a standard prison diet containing inappropriate sweets and desserts

forbidden under the official “diabetic diet” at Stateville.

29. As a result, Lippert suffers ongoing injuries of diabetic neuropathy, severe

headaches, weight loss, poor vision, severe fluctuating blood sugar levels and pain/numbness in

his hands, feet and legs, requiring emergency treatment on several occasions.

Lippert Files a Grievance to Receive His Medically Necessary Diabetic Diet

30. Fearful of his deteriorating medical condition and fearful that he would eventually

go into a diabetic coma, on April 20, 2008, Lippert, left with no other reasonable choice, filed a

grievance against Ghosh for first improperly taking away the previously adopted ADA diet and

implementing, as the Stateville policy, a LCS diet, and then, subsequently failing to monitor and

enforce the diet. See Offender’s Grievance dated April 20, 2008 (Exhibit F).

31. In his grievance, Lippert clearly states that despite the official Stateville diabetic

diet, as well as the recommended ADA requirements, Lippert continues to be served “jelly,

syrup, pies, cakes, cookies, puddings and ice cream” for his meals at breakfast, lunch and dinner.

Id.

32. At the time, Lippert sought nothing more than to have the proper diet

implemented, including “fresh fruits, fresh or steamed beans and starchy vegetables and whole

grains” as well as “unrefined carbohydrates”. Id.


7CH1 11652691.1

33. On May 19, 2008, the RN Supervisor, Defendant Ssenfuma purportedly

“reviewed” Lippert’s chart and “investigated” the grievance. See Memorandum dated May 19,

2008 (Exhibit G)

34. Ssenfuma stated that, despite numerous documents reflecting the need and

existence of a diabetic diet, no special diabetic diet existed, and that the only “special diets” were

“dental” for people with no teeth, “rend (sic)” for people with end stage renal disease, and

“vegan” a “Hebrew diet”. Id.

35. On June 5, 2008, Defendant Garcia, the Grievance Officer, apparently did no

further investigation, and instead rubber-stamped the opinion of the registered nurse. More

concerning, it appears that she utilized boiler plate language that she had no “authority to

contradict the doctor’s recommendation/diagnosis,” despite no such recommendation or

diagnosis being presented in the medical response. See Grievance Officer’s Report dated June 6,

2006 (Exhibit H).

36. It is the duty and obligation of the grievance officer to assemble all necessary

information relevant to a grievance, interview the grievant and make recommendations to the

IDOC Director.

37. Again in rubber-stamp fashion, on June 18, 2008, Defendant McCann concurred

with the assessment of the Grievance officer with deliberate indifference to Lippert’s medical

needs. Id.

38. McCann is responsible for the overall operations of the facilities at Stateville, the

supervision of its staff members, the oversight of both program and operational services of the

facility, as well as ensuring compliance with all Departmental directives, rules and policies.


8CH1 11652691.1

39. On November 17, 2008, after purportedly conducting a review of “all available

information”, Defendant Ford and Defendant Walker “determined that the issue will be

addressed without a formal hearing” and “recommended the grievance be denied.” See Letter

dated November 17, 2008 from the Illinois Department of Corrections to D. Lippert (Exhibit I).

COUNT I – FAILURE TO PROVIDE ADEQUATE MEDICAL TREATMENT42 U.S.C. § 1983

(Against all Defendants in their Official Capacity)

40. Lippert repeats and re-alleges the allegations contained in paragraphs 1 through

39 as if fully restated here.

41. From the date of his incarceration, Lippert has an objectively, sufficiently serious

injury, namely Type I Diabetes, which required ongoing medical care and treatment, including

strict adherence to Lippert’s dietary needs. The need for such dietary care is well-documented in

Lippert’s records, as well as well-recognized in this Circuit.

42. Since as early as 2004, Defendant Ghosh has been on notice of Lippert’s serious

medical dietary needs related to his Type I diabetes and, since 2005, has been aware of the

official diabetic diet in place at Stateville.

43. Since as early as 2004, Defendant Walker has been on notice of Lippert’s serious

medical dietary needs related to his Type I diabetes and the official diabetic diet in place at

Stateville.

44. Since as early as 2005, Defendant Tanner has been on notice of Lippert’s serious

medical dietary needs related to his Type I diabetes and the official diabetic diet in place at

Stateville.


9CH1 11652691.1

45. Since as early as 2008, Defendants Ssenfuma, Elyea, Garcia, McCann and Ford

have been on notice of Lippert’s serious medical dietary needs related to his Type I diabetes and,

were aware of the official diabetic diet in place at Stateville.

46. Despite possessing this knowledge, the Defendants each intentionally, with

criminal recklessness, through repeated acts of negligence disregarded or with deliberate

indifference to the serious medical needs of Lippert by failing to follow the instituted diabetic

diet, failing to take steps to ensure that the treatment plan was properly carried out and that

Plaintiff was provided a routine and healthy diet.

47. Further, each Defendant, despite possessing the knowledge regarding Lippert’s

serious medical condition, denied access to adequate medical dietary care and knowingly

disregarded excessive risks to Plaintiff’s health and well-being by, among other things, (a)

refusing to take corrective action measures, (b) allowing and condoning the actions of the

medical department, grievance officer, chief administrative officer and administrative review

board to disregard an instituted dietary policy at Stateville, and (c) knowingly and deliberately

refusing to follow proper procedure in conducting a complete and thorough investigation into the

grievance submitted by Lippert.

48. Each of the above-described actions were in contravention of the policies and

procedures in place at Stateville and contrary to sound medical care for treating and managing

Plaintiff’s chronic medical condition.

49. Defendants continue to refuse to provide Lippert the proper medical care and the

medically necessary diabetic diet proscribed by the Medical Director of Stateville.

50. The Defendants’ ongoing deliberate indifference has deprived Lippert of his right

to be free from cruel and unusual punishment as secured to him under the Eight and Fourteenth


10CH1 11652691.1

Amendments to the United States Constitution, and has resulted in actual harm in the form of

severe headaches, diabetic neuropathy, weight loss, poor vision, severe fluctuating blood sugar

levels and pain/numbness in his hands, feet and legs.

WHEREFORE, Plaintiff Don Lippert, respectfully requests that this Court:

A. Declare the conduct of Defendants to have violated the rights guaranteed toLippert under appropriate Federal Law;

B. Order Defendants to make whole Lippert by providing the affirmative reliefnecessary to eradicate the effects of Defendants’ unlawful practices;

C. Grant Lippert actual, consequential, compensatory, punitive and any otherdamages that the Court may deem appropriate against Defendants;

D. Award Lippert his costs and reasonable attorney’s fees pursuant to 42 U.S.C. §1988;

E. Enter such other appropriate relief.

COUNT II – FAILURE TO PROVIDE ADEQUATE MEDICAL TREATMENT(Against Ghosh, Elyea and Ssenfuma in Their Individual Capacities)

51. Lippert repeats and re-alleges the allegations contained in paragraphs 1 through

50 as if fully restated here.

52. Defendants had a duty to provide all prisoners, including Lippert, with adequate

medical treatment for serious medical conditions.

53. Defendants were deliberately indifferent to Lippert’s medical needs.

54. From the date of his incarceration, Lippert has an objectively, sufficiently serious

injury, namely Type I Diabetes, which required ongoing medical care and treatment, including

strict adherence to Lippert’s dietary needs. The need for such dietary care is well-documented in

Lippert’s records, as well as well-recognized in this Circuit.


11CH1 11652691.1

55. Since as early as 2004, Defendant Ghosh has been on notice of Lippert’s serious

medical dietary needs related to his Type I diabetes and, since 2005, has been aware of the


56. Since as early as 2008, Defendants Ssenfuma and Elyea have been on notice of

Lippert’s serious medical dietary needs related to his Type I diabetes and were aware of the


57. Defendants were each aware of Lippert’s serious medical condition, but acted

with a sufficiently culpable state of mind, in that they each knew Lippert faced a substantial risk

of harm and disregarded that risk.

58. As a result of Defendants’ conduct, Lippert’s diabetes has become more severe,

including more frequent severe headaches and increasing diabetic neuropathy, Lippert has

continued to suffer from weight loss, increasingly impaired vision, and Lippert has continued to

experience a significant amount of pain and discomfort, all of which continue today.

59. Defendants showed deliberate indifference to Lippert’s serious medical needs,

through their actions, which include, but are not limited to, Defendants’:

a. failure to follow the Stateville diabetic diet prescribed for Lippert;

b. negligently ignoring Lippert’s repeated complaints regarding the improperdiet being provided him;

c. ignoring Lippert’s diabetes and Lippert’s medically necessary diabeticmeal plan; and

d. recklessly failing to conduct the proper medical inquiries into Lippert’scomplaints and to treat the inquiries with the prescribed diabetic diet.

60. As a licensed physician and Agency Medical Director for the Illinois Department

of Corrections, and as a result of Lippert’s grievances, Elyea was aware of the risks associated

with Lippert’s serious medical condition, yet disregarded those risks by failing to ensure that


12CH1 11652691.1

Lippert’s received the prescribed and appropriate diabetic diet while incarcerated within an

Illinois correctional institution.

61. As a licensed physician and Medical Director, and as a result of Lippert’s

repeated written and oral grievances, Ghosh was aware of the risks associated with Lippert’s

serious medical condition, yet disregarded those risks by failing to ensure that Lippert’s received

the prescribed and appropriate diabetic diet while incarcerated within an Illinois correctional

institution.

62. As a registered nurse, Ssenfuma was aware of the risks associated with Lippert’s

serious medical condition, yet disregarded those risks by failing to conduct a proper investigation

into Lippert’s medical history and history of grievances, and failing to ensure that Lippert’s

received the prescribed and appropriate diabetic diet while incarcerated within an Illinois

correctional institution.

63. The Defendants’ ongoing deliberate indifference has deprived Lippert of his right

to be free from cruel and unusual punishment as secured to him under the Eight and Fourteenth

Amendments to the United States Constitution, and has resulted in actual harm in the form of

severe headaches, diabetic neuropathy, weight loss, poor vision, severe fluctuating blood sugar

levels and pain/numbness in his hands, feet and legs.

WHEREFORE, Plaintiff Don Lippert, respectfully requests that this Court:

A. Declare the conduct of Defendants to have violated the rights guaranteed toLippert under appropriate Federal Law;

B. Order Defendants to make whole Lippert by providing the affirmative reliefnecessary to eradicate the effects of Defendants’ unlawful practices;

C. Grant Lippert actual, consequential, compensatory, punitive and any otherdamages that the Court may deem appropriate against Defendants;

D. Award Lippert his costs and reasonable attorney’s fees pursuant to 42 U.S.C. §1988;


13CH1 11652691.1

E. Enter such other appropriate relief.

DEMAND FOR JURY TRIAL

Pursuant to the Federal Rule of Civil Procedure 38(b), Lippert demands trial by jury for

all of the issues pled so triable.

Dated: November 10, 2010

Respectfully submitted,

DON LIPPERT

By: s/ Jason P. StiehlOne of His Attorneys

Mark L. JohnsonJason P. StiehlSeyfarth Shaw LLP131 South Dearborn StreetSuite 2400Chicago, Illinois 60603Phone: (312) 460-5000Fax: (312) 460-7000


CH1 11652691.1

CERTIFICATE OF SERVICE

The undersigned certifies that on November 10, 2010, a true and correct copy of theforegoing FIRST AMENDED COMPLAINT was electronically filed with the Clerk of the Court forthe Northern District of Illinois using the CM/EF system. Notice of this filing will be sent to allparties by operation of the Court’s electronic filing system. Parties may access this filingthrough the Court’s CM/ECF system.

___s/ Jason P. Stiehl_________

Mark L. JohnsonJason P. StiehlSeyfarth Shaw LLP131 South Dearborn StreetSuite 2400Chicago, IllinoisPhone: (312) 460-5000Fax: (312) 460-7000

Attorneys for Plaintiff Don Lippert


Case: 1:10-cv-04603 Document #: 10-1 Filed: 11/10/10 Page 1 of 2 PageID #:45

united states district court northern district of …partha ghosh, m.d., willard elyea, joseph...

Documents